Peppernell v McCrae [2024] NSWCATAP 79

Peppernell v McCrae [2024] NSWCATAP 79

The Appeal Panel refused leave because the appellant identified no question of law and did not establish any basis for leave. The Tribunal's preference for the respondent's expert evidence was open on the evidence before it, the appellant bore the onus of proving that the respondent caused the dividing fence problems, the asserted later recantation by the respondent's expert was not probative evidence before the Appeal Panel, the photographs did not establish the factual propositions advanced by the appellant, and the claimed new evidence was not shown to have been unavailable by the required objective test.

Jurisdiction
Australia
Judgment Date
13 May 2024
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Decision Dismissing an Application Under the Dividing Fences Act 1991 (nsw) / Application for Leave to Appeal and Appeal Before the NCAT Appeal Panel
Outcome
Leave to appeal refused and the appeal otherwise dismissed; costs submissions timetable made.
Legal Topics
['ncat Internal Appeals' 'leave to Appeal' 'dividing Fences' 'fresh Evidence' 'weight of Evidence' 'expert Evidence' 'costs']
['administrative Law' 'civil Procedure' 'property Law'] ['ncat Internal Appeals' 'leave to Appeal' 'dividing Fences' 'fresh Evidence' 'weight of Evidence' 'expert Evidence' 'costs']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Decision Dismissing an Application Under the Dividing Fences Act 1991 (nsw) / Application for Leave to Appeal and Appeal Before the NCAT Appeal Panel

Legal Issues

  1. 1 ['Whether the appellant raised any question of law permitting an appeal as of right under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW).' "Whether leave to appeal should be granted on the basis that the Tribunal's decision was not fair and equitable." "Whether leave to appeal should be granted on the basis that the Tribunal's decision was against the weight of the evidence." 'Whether significant new evidence had arisen that was not reasonably available at the time of the Tribunal hearing.' "Whether the Tribunal erred in relying on the expert evidence before it rather than photographs and the appellant's assertions about later expert comments."]

Ratio Decidendi

The Appeal Panel refused leave because the appellant identified no question of law and did not establish any basis for leave. The Tribunal's preference for the respondent's expert evidence was open on the evidence before it, the appellant bore the onus of proving that the respondent caused the dividing fence problems, the asserted later recantation by the respondent's expert was not probative evidence before the Appeal Panel, the photographs did not establish the factual propositions advanced by the appellant, and the claimed new evidence was not shown to have been unavailable by the required objective test.

Court Disposition

Leave to appeal refused and the appeal otherwise dismissed; costs submissions timetable made.

Orders

  • ['Leave to appeal is refused, and the appeal is otherwise dismissed.' 'If the respondent seeks costs, he must file and serve submissions on or before 27 May 2024.' 'The appellant may respond on or before 10 June 2024.' 'The respondent may reply on or before 17 June 2024.']